Economic disputes, liquidated damages, how to calculate liquidated damages for economic disputes

1.According to the law, if the deposit clause is agreed, the effective amount of the deposit is 20% of the original target, and the excess part is invalid. In other words, a deposit of 2000 can be returned.

2.According to Article 116 of the Contract Law, if the parties agree on liquidated damages, and if there is an agreement on a deposit, when one party breaches the contract, the other party may choose to use the liquidated damages or the deposit clause.

3.According to Article 115 of the Contract Law, if the party paying the deposit fails to perform the agreed debt, it has no right to demand the return of the deposit.

To sum up, although the other party did not give you the sample you asked for at the beginning, you later reached an agreement, and you agreed to another proposal of the other party, which means that you signed a new contract. After that, you breach the contract, if you agree on both liquidated damages and deposits, the other party can choose one of them, if it is a deposit, the other party can only take 4000, that is, you can get 2000 back from the other party

According to the provisions of the guarantee law, the deposit is punitive, and the party who pays the deposit does not perform the contract, and has no right to demand a refund of the deposit; If the party accepting the deposit fails to perform the contract, both parties shall return the deposit.

Personally, I think it's acceptable for the manufacturer to ask you to bear 20% liquidated damages.

Calculation method of the amount of liquidated damages in an economic contract: If the parties to an economic contract have agreed on the calculation method of the amount of liquidated damages, it shall be calculated in accordance with the agreement; If there is no agreement, it can be calculated according to the actual loss. As for the question of how to calculate the amount of damages for breach of contract in economic contracts, I will answer it for you in detail below.

1. How to calculate the amount of compensation for breach of contract in economic contracts

Calculation method of the amount of damages for breach of contract in economic contract:

1) If the parties to the economic contract have agreed on the calculation method of the amount of liquidated damages, it shall be calculated in accordance with the agreement;

2) If there is no agreement, it can be calculated according to the actual loss.

2. Legal basis.

1) Article 582 of the Civil Code of the People's Republic of China.

If the performance does not conform to the agreement, the liability for breach of contract shall be borne in accordance with the agreement of the parties. Where there is no agreement on liability for breach of contract or the agreement is not clear, and it cannot be determined in accordance with the provisions of Article 510 of this Law, the injured party may, based on the nature of the subject matter and the size of the loss, reasonably choose to request the other party to bear liability for breach of contract such as repair, rework, replacement, return, reduction of price or remuneration.

2) Civil Code of the People's Republic of China

Article 585.

The parties may agree that one party shall pay a certain amount of liquidated damages to the other party according to the circumstances of the breach of contract, and may also agree on the method of calculating the amount of compensation for losses arising from the breach.

If the agreed liquidated damages are lower than the losses caused, the people's court or arbitration institution may increase them at the request of the parties; Where the agreed liquidated damages are excessively higher than the losses caused, the people's court or arbitration institution may appropriately reduce them at the request of the parties.

If the parties agree on liquidated damages for delayed performance, the breaching party shall also perform the debt after paying the liquidated damages.

2. What is the liability for breach of contract in an economic contract?

1. Liability for breach of contract in economic contract, referred to as "contract liability". It refers to the legal liability that the parties to an economic contract should bear for not performing or improperly performing their contractual obligations. The following conditions are required to bear the liability for breach of economic contract:

The parties have breached the contract, are subjectively at fault, causing certain consequences and losses, and there is a causal relationship between the breach of contract and the result of the damage.

2. The form of liability for breach of contract is dusty

1) Breach of contract refers to a certain amount of money that the breaching party should pay to the other party in accordance with the law or the contract. The payment of liquidated damages is sufficient to meet the first two liability conditions, and no damage is required.

2) Compensation: A certain amount of money paid to the other party as compensation when the breaching party causes economic losses to the other party.

Calculation method of the amount of liquidated damages in an economic contract: If the parties to an economic contract have agreed on the calculation method of the amount of liquidated damages, it shall be calculated in accordance with the agreement; If there is an agreement if there is no slippage, it can be calculated according to the actual loss.

Article 114: The parties may agree that when one party breaches the contract, it shall pay a certain amount of liquidated damages to the other party according to the circumstances of the breach, and may also agree on the method of calculating the amount of compensation for losses arising from the breach.

When the parties enter into a contract, they need to determine the liability for breach of contract, so as to bind the parties to perform their obligations. In the event of a breach of contract, it will be resolved in accordance with the terms of the breach of contract. Then at the time of signing the contractLegal basis for liquidated damages clause

1. Contract Law

Article 113: Where one of the parties fails to perform its contractual obligations or performs its contractual obligations in an inconsistent manner with the agreement, causing losses to the other party, the amount of compensation for the losses shall be equivalent to the losses caused by the breach of contract, including the benefits that can be obtained after the performance of the contract, but shall not exceed the losses that the breaching party foresaw or should have foreseen at the time of entering into the contract.

Article 114: The parties may agree that when one party breaches the contract, it shall pay a certain amount of liquidated damages to the other party according to the circumstances of the breach, and may also agree on the method of calculating the amount of compensation for losses arising from the breach. If the agreed liquidated damages are lower than the losses caused, the parties may request the people's court or arbitration institution to increase them; If the liquidated damages are excessively higher than the losses caused, the parties may request the people's court or arbitration institution to appropriately reduce them.

Article 112:Where one of the parties fails to perform its contractual obligations or its performance of contractual obligations does not conform to the agreement, and the other party has other losses after performing its obligations or taking remedial measures, it shall compensate for the losses.

2. Interpretation of Several Issues Concerning the Contract Law of the People's Republic of China

Article 28 Where a party requests the people's court to increase the liquidated damages in accordance with the provisions of the second paragraph of Article 114 of the Contract Law, the amount of the increased liquidated damages shall not exceed the actual amount of losses. Where, after the liquidated damages have been increased, the parties request that the other party compensate for losses, the people's court will not support it.

Article 29: Where a party claims that the agreed liquidated damages are too high and requests an appropriate reduction, the people's court shall, on the basis of the actual losses, take into account comprehensive factors such as the performance of the contract, the degree of fault of the parties, and the expected benefits, and weigh them in accordance with the principles of fairness and good faith, and make a ruling. Where the liquidated damages paid by the parties exceed 30% of the losses caused, it can generally be found to be "excessively higher than the losses caused" as provided for in paragraph 2 of Article 114 of the Contract Law.

That's all for youLegal basis for liquidated damages clause, mainly introduces the contract law and the relevant interpretations of the contract law. If the parties have a dispute over breach of contract, they can refer to the provisions of the law to deal with it. In order to effectively protect the legitimate rights and interests of the parties, you must understand the relevant regulations when signing the contract, and you can consult Jieyang lawyers for more related questions.

The law stipulates that the parties to a contract may agree to conduct litigation at the place where the contract is concluded or performed, or where one of the parties to the contract is located, or they may agree to appoint an arbitration institution to conduct arbitration. If there is no agreement, the lawsuit can only be brought at the place where the contract is performed or where the defendant is located. In addition, it should be noted that if arbitration is agreed, the arbitration institution shall be agreed, and the non-existent arbitration institution - Yuexiu District Arbitration Commission, the arbitration institution where Party A is located - these are invalid.

The reply of the Supreme People's Court on the issue of what standard should be used to calculate liquidated damages for late payment" stipulates that if the parties to the contract have not agreed on the standard of liquidated damages for late payment, the people's court may calculate the liquidated damages for late payment with reference to the standard for financial institutions to calculate the interest on overdue loans stipulated by the People's Bank of China. When the People's Bank of China adjusts the standards for financial institutions to charge interest on overdue loans, the people's courts may adjust the calculation standards for calculating liquidated damages for late payment accordingly.

Article 17 of the Interpretation of the Supreme People's Court on Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Construction Contracts stipulates that if the parties have agreed on the standard for calculating and paying interest on the unpaid project price, it shall be handled in accordance with the agreement; If there is no agreement, the interest shall be calculated according to the interest rate of the same type of loan issued by the People's Bank of China for the same period. Article 17 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Contracts for the Sale and Purchase of Commercial Housing stipulates that:

If the contract for the sale and purchase of commercial housing does not stipulate the amount of liquidated damages or the method of calculating the amount of damages, the amount of liquidated damages or damages may be determined with reference to the following standards: if the payment is overdue, it shall be calculated according to the total amount of the unpaid purchase price and the standard for financial institutions to charge interest on overdue loans stipulated by the People's Bank of China. The Circular of the People's Bank of China on Issues Concerning RMB Loan Interest Rates stipulates:

The penalty interest rate for overdue loans (loans where the borrower fails to repay the loan on the date agreed in the contract) has been changed from the current interest rate of 2.1/10,000 per day to 30 50 on the loan interest rate specified in the loan contract. Therefore, the standard for calculating interest losses can at least refer to the interest rate of similar loans issued by the People's Bank of China for the same period. As a result of this, the relationship between the liability for breach of contract and the contractual debt can be summarized as follows:

Debt is the premise of liability, and liability is the result of non-performance of debt. In the case of a signed contract, if the omission of the contract is caused by the failure of one party to continue to perform, resulting in losses to one party, the party who has suffered the loss has the right to claim compensation, and the amount of damages for breach of contract that is not stipulated in the contract may be determined by the two parties through negotiation.

Calculation of interest for statutory delay in performance :

Determination of the interest base for statutory deferred performance.

Article 253 of the Code of Civil Procedure provides for the enforcement of the obligation to pay money as specified in a legal instrument, the amount of which is specified by the designation of the legal instrument. The amount of the monetary obligation is the interest base for the delay in performance. So what does the interest base for deferred performance include?

In practice, the performance varies depending on the circumstances of each case. For example, in most cases, judgments and rulings with monetary obligations include the following four items: payment of principal, liquidated damages, payment of interest, litigation costs (appraisal fees), etc.

There is generally no objection to the inclusion of the principal in the interest base for delayed performance, and the following is an analysis of whether liquidated damages, interest payments, litigation costs, etc. should be included in the interest base for delayed performance.

1.Penalty.

Liquidated damages refer to the money that one party should pay to the other party for breach of contract in accordance with the agreement of the parties or the direct provisions of the law. The subject matter of liquidated damages is money, which arises according to the agreement between the two parties in the monetary payment relationship. In the event of a breach of contract by one party, the court will support the claim of the obligee and specify in the judgment or ruling that the liquidated damages are the debtor's obligation to pay.

The argument that liquidated damages should not be included in the base for calculating interest for delay in performance is that liquidated damages are punitive in nature,[2] and if they are included in the base for calculating interest on delay in performance, it is a double sanction. In fact, this understanding confuses the concept and form of liability for liquidated damages and interest for delayed performance, and confuses the boundary between public and private powers.

The determination of liquidated damages is based on the agreement on the private rights of both parties, the true intention of both parties, and the recognition of the public authority in the litigation after one party violates the agreement; The interest on delay in performance is a mandatory provision in the enforcement link of the litigation law, and it is the punishment of the public power for the debtor who fails to perform the statutory obligations. After the latter enters compulsory enforcement, it is dominated by public power, and there is no duplication between the two.